UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________
No. 01-30951

___________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

VERSUS

CORTNEY WALKER, a/k/a MOON, a/k/a COURTNEY WALKER, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana

August 12, 2002

Before DAVIS, JONES and SMITH, Circuit Judges.

PER CURIAM:

Cortney Walker appeals his revised sentence on the basis that the district court’s

imposition of a 10-year sentence on resentencing violated Apprendi v. New Jersey , 530 U.S. 466

(2000). We disagree and affirm.

I.

Walker was convicted of conspiracy to distribute marijuana after a jury trial. No quantity

of drugs was specified in the indictment and the jury was instructed that the government “need not

prove the actual amount of the controlled substance that was part of any alleged violation in this

case.” The district court originally sentenced Walker to life imprisonment and eight years

supervised release. His conviction and sentence were affirmed on direct appeal.

In 2000, Walker filed a pro se motion under 28 U.S.C. § 2255, arguing that his life1 21 U.S.C. § 841(b)(1)(D) read in pertinent part as follows:

In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, . . . such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of
not mor e t han 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of T it le 18, or $250,000 if the defendant is an individual

. . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be s entenced to a term of i mprisonment of not more than 10 years, a fine not to exceed the great er of that authorized in accordance with the provisions of Title 18, or $500,000 if the defendant is an individual.

. . . [I]f t here was such a prior conviction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.

2 21 U.S.C. § 841(b)(4) reads as follows: Notwithstandi ng paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by dis t ributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 or this title and section 3607 of Title 18.

3 21 U.S.C. § 844 reads in pertinent part as follows: Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that

. . . if he commits such offense after tw o o r more prior convictions under this sentence was illegal as it exceeded the baseline five-year statutory maximum sentence for

conspiracy to distribute marijuana. The district court granted his motion to the extent it sought to

vacate his life sentence and issued an order resentencing Walker to 10 years imprisonment and 4

years supervised release, the statutory maximum under 21 U.S.C. § 841(b)(1)(D) which applies to

offenses involving less than 50 kilograms of marijuana. 1 The five-year sentence Walker sought is

extended to ten years with a felony drug offense. Walker filed a motion for reconsideration,

contending that he had not waived his right to be present at resentencing. The district court

granted the motion, vacated the new sentence and scheduled Walker’s resentencing.

At resentencing, Walker argued that, rather than being subject to § 841(b)(1)(D)’s 10-year

statutory maximum for prior felony drug offenders, he was subject to the statutory maximum of

§841(b)(4) 2 , which, by cross-referencing 21 U.S.C. § 844 3 , authorizes imprisonment for up tosubchapter or subchapter II of this chapter, or two or more prior convictions for any

drug, narcotic or chem

ical, o ffense chargeable under the law of any State, or a combination of two or more such offenses have become final, he shall be sentenced
to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5,000. three years for a two-time felony drug offender convicted of “distributing a small amount of

marijuana for no remuneration.” The district court rejected this argument and resentenced Walker

to ten years imprisonment and four years supervised release. Walker appeals.

II.

Walker argues that the statutory maximum applicable to his offense of conviction is that

set forth in §841(b)(4) and § 844, which authorizes imprisonment up to three years for a two-time

felony drug offender convicted of “distributing a small amount of marijuana for no remuneration.”

We disagree. This court has noted in several published opinions that the default penalty range for

a marijuana distribution offense is set forth in § 841(b)(1)(D). United States v. Garcia , 242 F.3d

593, 599-600 (5th Cir. 2001). As Walker’s sentence does not exceed the statutory maximum for

that provision, there is no Apprendi error. United States v. Clinton , 256 F.3d 311, 314 (5th Cir.),

cert. denied , 122 S.Ct. 492 (2001).

We decline the suggestion of Walker that our decision in United States v. Miranda , 248

F.3d 434 (5th Cir. 2001), requires a different result. In Miranda , the defendant was found guilty

of conspiracy to possess with intent to distribute various controlled substances. The panel

focused on the district court’s instruction to the jury that it only needed to find evidence

supporting a measurable amount of the controlled substance alleged in each count under

consideration. The panel concluded that under this charge, the maximum sentence applicable

when the “most we can be sure the jury found beyond a reasonable doubt is that Appellants

conspired to possess with intent to distribute a measurable amount of marijuana” was thatprescribed by 21 U.S.C. § 841(b)(4) and 844(a). The Miranda panel ultimately refused to

exercise its discretion to correct the plain error under Apprendi because the trial evidence

supported the district court’s findings concerning drug quantity and the defendants’ roles in the

offenses. Id. at 445-46. The jury instruction that was the focus of the Miranda panel was not

given in this case. To the extent that Miranda is inconsistent with the earlier issued opinion in

Garcia , we decline to follow it based on this circuit’s rule that one panel may not overrule a prior

panel opinion and the earlier precedent controls. Alcorn County, Mississippi v. U.S. Interstate

Supplies , 731 F.2d 1160, 1166 (5th Cir.1984).

III.

Finding no Apprendi

error in Walker’s sentence, we AFFIRM.